Wilson Chapter 14
Klein Oak High School
• Only in the United States do judges play
so large a role in policy-making.
– Judicial review: the right of the federal courts
to rule on the constitutionality of laws and
• Chief judicial weapon in the checks and balances
– Few other countries have such a power.
• In Britain, parliament is the supreme law maker.
• Judicial review, with some notable exceptions, is
not determinative in other countries.
• Debate is over how the Constitution
should be interpreted.
• Strict constructionism: judges are bound by
wording of Constitution
• Activist: judges should look to underlying principles
• Not a matter of liberal versus conservative
– A judge can be both conservative and activist, or liberal
and strict constructionist.
– Today: most activists tend to be liberal, most strict
constructionists tend to be conservative.
Development of the Federal Courts
• Founders view
• National supremacy and slavery: 1789 –
• Government and the economy: 1865 –
• Government and political liberty: 1936 to
• The revival of state sovereignty
• Most Founders probably expected judicial review but did
not expect federal court to play such a large role in
• Traditional view: judges find and apply existing law
• Activist judges would later respond that judges make
• Traditional view made it easy for Founders to predict
courts would be neutral and passive in public affairs.
• Hamilton: courts are the least dangerous branch; their
authority only limits the legislature
• But federal judiciary evolved toward judicial activism,
shaped by political. economic, ideological forces of three
National Supremacy and Slavery:
• Marbury v. Madison (1803) and McCulloch v. Maryland
– Supreme Court could declare a congressional act
– Power granted to federal government should be construed
– Federal law is supreme over state law.
• Interstate commerce clause is placed under the authority
of federal law; state law conflicting with federal law was
• Dred Scott v. Sandford (1857): Blacks were not, and
could not become, free citizens of the U.S.; federal law
(Missouri Compromise) prohibiting slavery in northern
territories was unconstitutional
Government and the Economy:
1865 to 1936 - 1
• Dominant issue of the period: under what
circumstances could the economy be regulated
by the state governments? by the federal
• Private property held to be protected by the
• Judicial activism—Supreme Court assessing the
constitutionality of governmental regulation of
business or labor
Government and the Economy: 1865 to
1936 - 2
• Supreme Court was supportive of private
property, and could not develop a principle
distinguishing between reasonable and
• The Court interpreted the Fourteenth and
Fifteenth amendments narrowly as applied to
– upheld segregation (Plessy v. Ferguson, 1896)
– excluded blacks from voting in many states.
Government and Political Liberty:
1936 to the present
• Court establishes tradition of deferring to
the legislature in economic regulation
• Court shifts attention to personal liberties
and is active in defining rights.
• Court-packing plan (FDR)
• Warren Court provided a liberal protection
of rights and liberties against government
Revival of State Sovereignty
• Beginning in 1992, the Supreme Court
began to rule that the states have the right
to resist some federal action.
Structure of the Federal Courts
• Supreme Court (created by Constitution)
• Constitutional Courts (created by
• Legislative Courts (created by Congress)
• Two kinds of federal courts were created
by Congress to handle cases that the
Supreme Court does not need to decide.
• Exercise judicial powers found in Article III
• Judges serve during good behavior
• Salaries not reduced while in office
– District Courts (94)
– Courts of Appeals (12)
• Created by Congress for specialized
• Judges have fixed terms.
• Judges can be removed.
• No salary protection
• Example: Court of Military Appeals
Selecting Judges 1
• All constitutional court judges are nominated by
president and confirmed by the Senate
• Party background has some effect on judicial
behavior, but rulings are also shaped by other
factors such as the facts of the case, precedent,
• Senatorial courtesy: appointees for federal
courts are reviewed by senators for that state, if
the senators are of the president’s party
(particularly for U.S. district courts)
Selecting Judges 2
• The litmus test
– Presidents seek judicial appointees who
share their political ideologies.
– Has caused different circuits to come to
different rulings about similar cases
– Raises concerns that ideological tests are too
dominant, and has caused delays in securing
– Greatest impact on Supreme Court—no
tradition of senatorial courtesy
Jurisdiction of the Federal Courts
• Dual court system
• Route to the Supreme Court
Dual Court System 1
• One state, one federal
• Federal cases listed in Article III and Eleventh
Amendment of Constitution
• Federal question cases: involving
– U.S. Constitution
– federal law
• Diversity cases: involving
– different states, or
– citizens of different states
Dual Court System 2
• Some cases can be tried in either federal
or state court.
– Example: if both federal and state laws have
been broken (dual sovereignty)
– Jurisdiction: each government has right to
enact laws and neither can block prosecution
out of sympathy for the accused
• State cases sometimes can be appealed
to Supreme Court.
Route to the Supreme Court
• Most federal cases begin in district courts.
– Most are straightforward, do not lead to new public policy.
• Supreme Court picks the cases it wants to hear on
– Requires agreement of four justices to hear case - to issue a writ
– Usually deals with..
• Significant federal or constitutional question
• Conflicting decisions by circuit courts
• Constitutional interpretation by one of the highest state courts,
about state or federal law
– Only about 100 appeals are granted certiorari
– Limited number of cases heard results in diversity of
constitutional interpretation among appeals courts
Getting to Court (overview)
• Deterrents to the courts acting as
• Fee shifting
• Standing: who is entitled to bring a case
• Class action suits
Deterrents to Courts Acting as
• Supreme Court rejects all but a few of the
applications for certiorari.
• Costs of appeal are high
– But these can sometimes be lowered...
• In forma pauperis: plaintiff indigent, with costs paid
• Indigent defendant in a criminal trial: legal counsel
provided by government at no charge
– Gideon v. Wainwright (1963)
• Payment by interest groups (e.g.. American Civil
• Usually, each party must pay their own
• However, the losing defendant pays the
plaintiff’s expenses (fee shifting) in certain
Standing: Who is Entitled to Bring a
• There must be a real controversy between
• Personal harm must be demonstrated.
• Being a taxpayer does not ordinarily constitute
entitlement to challenge federal government
action; this requirement is relaxed when the First
Amendment is involved.
• Sovereign immunity: government must consent
to being sued
Class Action Suits
• Brought on behalf of all similarly situated
• Number of class action suits increased
because there were financial incentives to
bring suit and because Congress was not
meeting new concerns.
• In 1974, Supreme Court tightened rules on
these suits for federal courts, though many
state courts remain accessible.
The Supreme Court in Action 1
• Oral arguments by lawyers after briefs submitted
– Each side has one half-hour, but justices can interrupt
– Solicitor general
• Decides what cases the government will appeal from lower
• Approves every case presented to the Supreme Court
– Amicus curiae (i.e. ―friend of the Court‖) briefs
submitted if both parties agree or Supreme Court
– Other influences on the justices include law journals.
The Supreme Court in Action 2
– Conference procedures
• Role of chief justice: speaking first, voting last
• Selection of opinion writer
– Chief if on majority
• Four kinds of court opinions
– Per curiam: brief and unsigned
– Opinion of the court: majority opinion
– Concurring opinion: agree with the ruling of the majority
opinion, but modify the supportive reasoning
– Dissenting opinion: minority opinion
The Power of the Federal Courts
• Power to make policy
• Measures of power
• Views of judicial activism
• Legislation and the courts
Power to Make Policy
• By interpretation of the Constitution or law
• By extending the reach of existing law
• By designing remedies that involve judges
acting in administrative or legal ways
Measures of Power
• Number of laws declared unconstitutional (over
• Number of prior cases overturned; not following
stare decisis (over 260 eases since 1810)
• Extent to which judges will handle cases once
left to the legislature (―political questions‖)
• Kinds of remedies imposed; judges may go
beyond what is narrowly required
• Basis for sweeping orders can come either from
the Constitution or from court interpretation of
Views of Judicial Activism 1
– Courts should correct injustices when other branches
or state governments refuse to do so.
– Courts are the last resort for those without the power
or influence to gain new laws.
– Judges lack expertise in designing and managing
– Initiatives require balancing policy priorities and
allocating public revenues.
– Courts are not accountable because judges are not
Views of Judicial Activism 2
• Possible reasons for activism
– Adversary culture, emphasizing individual
rights and suspicious of government power
– Easier to get standing in courts
Legislation and the Courts
• Laws and the Constitution are filled with
vague language, giving courts
opportunities to design remedies.
• Federal government is increasingly on the
defensive in court cases; laws induce
• Attitudes of federal judges affect their
decisions when the law- gives them
Checks on Judicial Power
• Reliance on others
• Congress and the courts
• Public opinion and the courts
• Reasons for increased activism
Reliance on Others
• Courts rely on others to implement their
– ―Mr. Marshall has made his decision, now let
him enforce it.‖
• President Jackson’s reaction to Supreme Court
decision favoring the Seminole Indians.
• The ―trail of tears‖ proceeded.
• If the decision is not highly visible, some
may choose to ignore it.
Congress and the Courts
• Confirmation and impeachment proceedings
gradually alter composition of courts, though
impeachment is an extraordinary and unusual
• Changing the number of judges, giving president
more or less appointment opportunities
• Supreme Court decisions can be undone by
– Revising legislation
– Amending the Constitution
– Altering jurisdiction of the Court
– Restricting Court remedies
Public Opinion and the Courts
• Defying public opinion frontally may be
dangerous to the legitimacy of the
Supreme Court, especially elite opinion.
• Opinion in realigning eras may energize
• Public confidence in the Supreme Court
since 1966 has varied with popular
support for the government, generally.
Reasons for Increased Judicial
• Government does more and courts
interpret the laws.
• Activist ethos of judges is now more widely